BEFORE THE WORKERS' COMPENSATION BOARD OF
THE STATE OF OREGON
HEARINGS DIVISION
Oregon Occupational Safety &
Health Division ) Docket No: SH92333
Plaintiff ) Citation No. R993202292
vs. )
TOM TINGLEY DBA )
PUGET SOUND ENVIRONMENTAL )
SERVICES COMPANY, Defendant ) OPINION AND ORDER
Pursuant to notice, mailed on or about February 19, 1993, a
hearing convened in Salem, Oregon before Referee Michael V.
Johnson and was recorded by Diane Bakmeyer of Business Support
Services. The plaintiff, Oregon Occupational Safety & Health
Division (OROSHA) was represented by Assistant Attorney General,
D. Kevin Carlson. The defendant, Tom Tingley DBA Puget Sound
Environmental Services Company, did not appear. The hearing was
deliberately convened fifteen minutes late to allow the
defendant to arrive on the premises in the event some minor
delay had occurred, but no person ever appeared on behalf of the
defendant. The record closed at the conclusion of the hearing.
No affected parties elected to appear as parties.
This is a contested case under the Oregon Safe Employment Act.
ISSUES
Correctness of Citation Optional Report No. R993202292
1. Whether the employer violated OAR 437-02-360; 29 CFR
1910.1025(d)(7) by failing to monitor the exposure of employees
to lead while they were involved in removing "slag" from the
"fourth hole" of the new Melt Shop of Cascade Steel Rolling
Mills.
If the defendant violated the above, whether a penalty of $75
was reasonable and correct.
2. Whether the defendant employer violated OAR 437-02-360; 29
CFR 1910.1025(n)(4)(i) by failing to make available upon request
all records required to be maintained in connection with the
employees who worked in the fourth hole of the new Melt Shop of
Cascade Steel Rolling Mills.
If the defendant violated the rule, whether a penalty of $50 was
reasonable and correct.
EXHIBITS
At hearing the following exhibits were admitted into evidence: 1
through 9 submitted by OROSHA April 20, 1993; the revised
Exhibits 1 through 9 submitted April 20, 1993 by OROSHA
substituting for Exhibit 8 "Subdivision Z-Toxic and Hazardous
substances: lead", rather than "Subdivision Z-Air Contaminates,
Division 2" also eight photographs which constitute Exhibit 7.
FINDINGS OF FACT
The defendant occasionally does business within the State of
Oregon, and, therefore, occasionally has employees within the
state. One of the defendant's functions is to enter onto the
location of other businesses and deal with environmentally
dangerous chemicals when requested to do. The defendant/employer
has an accident rate below the average for that particular
industry.
Cascade Steel Rolling Mills is located in McMinville, Oregon. It
is engaged in remanufacturing metals and, therefore, requires a
facility to melt metal. It constructed a new melt shop at its
facility, which includes a large melting furnace. As metal is
melted down, certain toxins are released, and must be properly
disposed of. At Cascade Steele Rolling Mills those waste
products are vented from the top of the furnace into a room
known as the "bag room" in which airborne particulates are
mechanically filtered and collected in bags and stored pending
later disposal. The vent is a five-foot diameter tube known as
the "fourth hole".
The walls of the "fourth hole" gradually become encrusted with
residue from the vented gases. The residue, known as "slag",
contains .32 to 1 percent lead, in addition to other toxins.
Lead is known to toxicologists to cause severe physiological
disruptions of the nervous system and other internal organs,
contact with excess doses of lead can ultimately be fatal.
Employee exposure to .32 to 1 percent of lead exceeds the safe
limit.
Periodically the slag must be removed from the fourth hole.
Removal is manual. (See Exhibit 7 page 1) First overhead cranes
are moved into position over the top of the furnace, and then
the entire top of the furnace is temporarily removed. Next, a
large metal container is suspended by heavy chains from a track
on the ceiling and moved into place in front of the opening to
the fourth hole. (The metal container is shaped somewhat like a
boat and therefore is called a "skiff"). Next, the workers gain
access to the fourth hole by standing on a catwalk platform and
then stepping onto the "skiff", and from there scrambling on
into the exhaust duct vent shaft. The workers then use chippers,
shovels and other implements to remove the slag, which is then
transported via conveyor belt to the opening of the exhaust duct
and dumped into the skiff for ultimate removal.
Puget Sound Environmental Service Company contracted to clean
the slag from the fourth hole. On or about March 17, 1992, the
defendant employer had employees on site at the premises of
Cascade Steel Rolling Mills. At that time the mill had removed
the top portion of the furnace, so that workers could obtain
access to the fourth hole. As the Puget Sound employees entered
the fourth hole, none were wearing monitoring devices to measure
the concentration of airborne lead in the worker's breathing
zone. The employer knew there were concentrations of lead in the
slag in the fourth hole. Because that site is only occasionally
cleaned, there was only a low probability that illness would, in
fact, result from an exposure. However, it was reasonably
predictable that if an employee of Puget Sound Environmental
Services was exposed to a level of .32 to 1 percent of lead, the
exposure would result in serious physical harm to the employee.
On March 17, 1992, Russell A. Reasoner, Health Compliance
Officer with OROSHA (also known as an Industrial Hygienist)
inspected the premises of Cascade Steel Rolling Mills and saw
Puget Sound employees entering the fourth hole. Because none
were wearing lead monitoring devices, OROSHA attached monitoring
equipment to one or more of the workers as they entered the
fourth hole. (See Exhibit 7 page 2)
Following the health and safety inspection, Mr. Reasoner was in
telephone communication with Tom Tingley, and demanded that Mr.
Tingley provide copies of all records of monitoring including,
but not limited to, specific details of each of the samples
taken, a description of the sampling methods used, the type of
respiratory devices worn, identifying information about the
employees monitored and all employees exposed to the
lead-contaminated area, and any other environmental variables
which might effect the measurement of employee exposure. (See
Exhibit 8 page 16 OAR 437-02-360; 29 CFR 1910.1025(n)(4)(i). Mr.
Tingley agreed to provide such documentation, but did not do so.
Sometime thereafter, Mr. Reasoner again telephoned Mr. Tingley
and again demanded that the records be provided. At no time were
records ever provided to OROSHA by the employer/defendant. There
was a low probability that if the employer kept no monitoring
records one or more employees would ultimately become ill as a
result of not knowing the specifics of exposure to lead on a
specific occasion or over the course of time. It was reasonably
predictable that if illness did result, it would be significant
illness but would not involve serious physical harm.
On July 22, 1992, Citation Optional Report #R99302292 issued,
citing the employer for violating safety rules in relation to
monitoring employees' exposure to lead Ex.. 1 page 3, item 1-1),
and for failing to make available required documentation. (Ex. 1
page 3, item 22) A copy of said citation was delivered to the
employer on July 24, 1992. (Ex. 1 page 4)
On July 31, 1992, Tom Tingley filed an appeal of the citation
and expressly directed DIF (and all other parties) to
communicate with the employer only at the following address:
"c/o Mr. Todd McWhorter, Attorney, 701 North Park Center, #203,
Santa Ana, CA 92705." When this matter was set in for hearing by
the Hearings Division of the Workers' Compensation Board, two
copies of said notice of hearing were mailed to that address in
Santa Ana, California, one copy being addressed to the employer
and the other to Attorney McWhorter.
FINDINGS OF ULTIMATE FACT
On or about March 17, 1992, the employer allowed employees to
participate in a process which might result in new or additional
exposure to lead and yet did not conduct additional monitoring.
On or after the same date, the employer did not make available
upon request all airborne lead-monitoring records required to be
maintained by that portion of the Oregon Safe Employment Act
relating to toxic and hazardous substances, specifically lead.
It is appropriate that the employer pay a penalty in relation to
each violation.
OPINION AND CONCLUSIONS OF LAW
Item 1-1
Violation
In complying with the mandate that an employer must assure that
"no employee is exposed to lead at concentrations greater than
50 micrograms per cubic meter of err (50 ug/m 3) averaged over
an 8 hour period," . . . "where ever there has been a
production, process, control or personnel change which may
result in new or additional exposure to lead, or whenever the
employer has any other reason to suspect a change which may
result in new or additional exposures to lead, additional
monitoring . . . shall be conducted." OAR 437 Division 2,
Subdivision Z, 360; 29 CFR 1910.1025(d)(7). The employer simply
failed to monitor the amount of airborne lead when employees
were engaged in shoveling and chipping out "slag" containing
appropriately .32 to 1 percent lead in the fourth hole of the
new melt shop of the Cascades Steel Rolling Mills.
Computation of Penalty
The penalty schedule of OAR 437-01-145 yielded an appropriate
penalty of $150. Though the employer did not immediately remedy
the violation, OROSHA gave the defendant "the benefit of the
doubt" because when OROSHA attached its monitoring equipment to
one or more employees, that technically remedied the violation,
therefore the employer became entitled to a 20 percent reduction
in penalty. The employer had an Lost Workday Cases Incident Rate
below that of the industry average, and therefore was entitled
to a 30 percent reduction. After the reductions were factored
in, the appropriate penalty was $75.
Item 2-2
Violation
"The employer shall establish and maintain an accurate record of
all monitoring required . . . [by subdivision Z of OAR 437,
Division 2]. This record shall include: (a) the date(s), number,
duration, location and results of each of the samples taken,
including a description of the sampling procedure used to
determine representative employee exposure where applicable; (B)
a description of the sampling and analytical methods used and
evidence of their accuracy; (3) the type of respiratory
protective devices worn, if any; (D) name, social security
number, and job classification of the employee monitored and of
all other employees whose exposure the measurement is intended
to represent; and (E) the environmental variables that could
affect the measurement of employee exposure. The employer shall
maintain these monitoring records for at least 40 years or for
the duration of employment plus 20 years, which ever is longer."
OAR 437-02-360; 29 CFR 1910.1025(n)(4)(i). The employer entirely
failed to provide copies of any such documentation, therefore it
appears that no records were actually kept.
Computation of Penalty
Pursuant to OAR 437-01-145 appropriate penalty was $75. Because
the employer did not provide the requested monitoring records,
the employer was not entitled to the 20 percent penalty
reduction. However, because the employer had a Lost Workday
Cases Incidence Rate lower than the average in the industry, the
employer was entitled to a 30 percent reduction, which Yielded
an appropriate penalty of $50.
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED that Citation Optional
Report Number R993202292 is AFFIRMED IN ITS ENTIRETY.
NOTICE TO ALL PARTIES:
ANY PARTY TO THIS PROCEEDING WHO IS DISSATISFIED WITH THIS ORDER
MAY, NOT LATER THAN SIXTY (60) DAYS AFTER THE MAILING DATE OF
THIS ORDER, PETITION FOR JUDICIAL REVIEW AS PROVIDED IN ORS
183.480.
ENTERED at Salem, Oregon, MAY 11, 1993
WORKERS' COMPENSATION BOARD
By Michael V. Johnson, Referee